HKSAR v. CHENG WING KIN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 14
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The Applicant in this matter faced two charges. The first charge alleged that he on 21st July 1997, outside 105 Austin Road, Yaumati, unlawfully possessed 6.23 grammes of a crystalline solid containing 5.98 grammes of methamphetamine hydrochloride. The second charge alleged that he, at Room 23, 6/F, Nos. 5 - 7, Ho Man Tin Street, Kowloon, had in his possession, 3.94 grammes of a crystalline solid containing 3.75 gammes of methamphetamine hydrochloride. He pleaded guilty to possessing the 3.94 grammes of methamphetamine hydrochloride found at his home address, but he denied possession for trafficking of the larger amount of 6.23 grammes which was found on him while he was in the street. At the conclusion of the trial on their issue, it was found guilty of simple possession only.

2. The facts were that he had been stopped in the street in Austin Road and, when he was searched, the drugs, the subject of the first charge, were found. He was then taken to his home and the other quantity of drug was found on top of a small table inside the premises.

3. The trial Judge when sentencing said:

"The Court of Appeal is also on record as saying that when there is possession of a substantial amount of dangerous drugs by an abuser, there is a substantial risk to the community and that the sentence should reflect that risk. It is clear that your propensity for abusing drugs was not tempered by your previous conviction when you were fined. You have since moved on from cannabis to the highly addictive drug called ice.

I am in receipt of a drug addiction treatment centre report and a probation officer's background report in respect of you. You are not considered to be a drug dependant and, therefore, not suitable for treatment in the drug addiction treatment centre. In the light of what you told me in evidence regarding the number of 'hits' you required each day, I have to express some surprise that you are not considered to be a drug addict, particularly in view of the quantity you possessed in July of this year. The total quantity of ice that you possessed both at home and in the street is almost 10 grammes of the narcotic. Bearing in mind that both convictions are now for possession rather than for trafficking, I believe that the proper starting point for sentence is 3 years' imprisonment after trial on a global sentence basis. You have pleaded guilty to possession and you are therefore entitled to the full credit for your pleas by a one-third discount. You have a previous drug conviction and cannot properly claim any further discount on the ground of character. I find no other mitigation of weight."

The Judge then went on to sentence to imprisonment for two years. He was clearly taking into account what is referred to as the latent risk factor.

4. When the applicant first appeared before this court on 2nd April 1998, he said that his counsel had not be allowed fully to put his mitigation to the trial judge. The cause of that we ordered that the full transcript of the mitigation be obtained. His suggestion that his counsel was not allowed to put his mitigation is not borne out in any way by that transcript. However, today he is represented by Mr. Allan who has urged a number of grounds of appeal to this court.

5. The fourth ground is the one which he really relies as his substantial ground. He suggests that when the two leading cases are looked at, it can be seen that the sentence in this present case was too harsh. He relies particularly upon the plea of guilty, the "genuine remorse" and upon the reports which were obtained, particularly the probation report. That report is, it is true, favourable to the applicant but it must be contrasted with the report from the D.A.T.C. officer. In that report the officer says that the applicant showed no sense of remorse, had gained no insight into his past misdeeds and was "an unmotivated person who was not willing to be changed and improved".

6. The Judge would, in our view, have been right to feel uneasy about the sincerity of this applicant's remorse. The applicant told the court when he was giving evidence defending the trafficking charge that he took ice two or three times a day. He was successful in defending that charge. He then later told the assessment officer, who was making a report to see whether he should be sent to a addiction treatment centre, that he only took ice once a week. It seems to us that the applicant must have had in mind that such an assertion would make it unlikely that he would be sent to an addiction treatment centre. It, no doubt, did have that effect but it also cast doubt upon his "remorse". We are not impressed by the suggestion with they are dealing with the person who has exhibited the sort of remorse that will tell in any marked way in his favour. He had in his possession a quantity of ice, almost 10 grammes, which would have provided a very substantial number of "hits". We have no doubt that the latent risk principle was properly called into play. We have looked at the sentence with care and are satisfied that the sentence of two years was, in all of the circumstances not one which could be described as manifestly excessive.

7. This application must, therefore, be refused.